5.  The applicant was born in 1959 and is currently detained in Straubing Prison.
6.  On 14 February 2000 the Coburg Regional Court convicted the applicant of sexual assault and rape of a hitchhiker with the aid of weapons, committed in August 1999, and sentenced him to nine years’ imprisonment.
7.  The Regional Court had regard to the fact that the applicant had previously been convicted of sexual offences committed against acquaintances of his on several occasions, partly under the influence of alcohol, namely of two counts of attempted rape in 1978, of rape in 1983 and of sexual assault and another rape in 1989.
8.  Having consulted a psychiatric and a psychological expert, the Regional Court considered that the applicant had not suffered from a pathological personality disorder and that his criminal responsibility had not been diminished at the time of the offence. As the applicant had confirmed in the hearing that he was ready to undergo therapy, both experts considered that the applicant was not dangerous for the public as a therapy was likely to prove successful. The court, in its judgment, did not examine the question whether the applicant should be placed in preventive detention.
9.  On 28 June 2000 the Federal Court of Justice, while qualifying the applicant’s acts as rape with the aid of weapons alone, upheld the Regional Court’s judgment.
10.  Following his conviction in 2000, the applicant confirmed his willingness to undergo therapy in prison. He was admitted to the social‑therapeutic department of Straubing Prison in November 2005 and initially participated with motivation in the therapy offered. In July 2006, having learnt that the Federal Court of Justice had considered that a co‑detainee’s preventive detention could not be ordered retrospectively only owing to the latter’s refusal to continue therapy, the applicant discontinued the therapy, considering that he did no longer make any progress. According to the treating therapists, the applicant was unwilling to look into his offences. Thereupon, he was retransferred to an ordinary department of Straubing Prison.
11.  The applicant served his full sentence in Straubing Prison until 10 July 2008. Thereafter, he was provisionally placed in preventive detention in that same prison on the basis of a detention order issued on 2 July 2008 pending the competent courts’ decision whether or not his retrospective preventive detention was to be ordered.
12.  On 8 October 2008 the Coburg Regional Court, relying on Article 66b § 2 of the Criminal Code (see paragraphs 33-35 below), ordered the applicant’s preventive detention retrospectively (nachträgliche Sicherungsverwahrung).
13.  The Coburg Regional Court found that, in accordance with Article 66b § 2 of the Criminal Code, a chamber of that same court had convicted the applicant on 14 February 2000 of an offence against sexual self-determination, namely rape, and had imposed a sentence exceeding five years’ imprisonment.
14.  Moreover, following the applicant’s conviction, new facts within the meaning of Article 66b §§ 2 and 1 of the Criminal Code had emerged which disclosed the applicant’s considerable dangerousness to the public. The applicant had given up the therapy addressing his sexual offences which he had been ready to undergo at the time of his conviction and which, according to the experts heard at that time, would have had good prospects of success.
15.  Having heard two psychiatric experts, K. and S., whose findings the court endorsed, the Regional Court further considered that a comprehensive assessment of the applicant, his offences and his development during the execution of his sentence revealed that it was very likely that he would again commit sexual offences resulting in considerable psychological or physical harm to the victims. The applicant had a propensity to commit serious sexual offences. Ordering his preventive detention was proportionate as it was the only suitable way to prevent further offences. In particular, an individual therapy for sexual offenders outside prison which the applicant had declared to be ready to undergo, was not sufficient to protect the public from him.
16.  In his report, expert K. had diagnosed the applicant with a personality disorder with narcissistic, paranoiac and dissocial elements. In the expert’s view, there was a 95 to 100 per cent risk that the applicant would commit further serious sexual offences if released, as well as a very high risk that the applicant might kill future victims in order to evade punishment. Expert S. had assessed the risk that the applicant, whom he diagnosed with a dissocial personality with narcissistic elements, would commit further serious sexual offences at around 50 per cent.
17.  On 17 March 2009 the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill-founded. The decision was served on the applicant’s counsel on 30 March 2009.
18.  On 30 April 2009 the applicant, represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court. He argued, in particular, that the decision of the criminal courts to order his preventive detention retrospectively violated his right to liberty under Article 2 § 2 of the Basic Law and Article 5 § 1 of the Convention and was disproportionate in view of the failure to offer him adequate therapy in due time. He claimed, in particular, that the principle of proportionality enshrined in the rule of law was violated as there were insufficient means in preventive detention to offer detainees adequate treatment. He stated in that context that it was dishonourable for a State governed by the rule of law to expose persons to a risk of live-long imprisonment by retrospective changes in the law and to deprive them at the same time of the necessary means enabling them to regain their liberty.
19.  On 13 May 2009 the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 2 BvR 957/09). The decision was served on the applicant’s counsel on 18 May 2009.
20.  The judgment of the Coburg Regional Court having become final, the applicant was remanded in preventive detention in a separate wing of Straubing Prison for persons in preventive detention. He worked with success as a toolmaker in prison until October 2009 when he was suspended from work after having insulted a member of the prison staff. He does not receive any visits or letters in prison.
21.  The prison staff’s attempts to motivate the applicant to take up a social group therapy again were to no avail. Since January 2010 at the latest the applicant has declared to be ready to take up an individual therapy. However, the therapists of the prison’s social-therapeutic department did not consider an individual therapy necessary in the applicant’s case.
22.  On 4 October 2010 the city of Straubing informed the applicant that, having consulted a psychiatric expert, U., it had decided not to apply for the applicant’s placement in a psychiatric hospital under the Bavarian (Mentally Ill Persons’) Placement Act (see paragraph 38 below). The expert, having examined the applicant in person, had diagnosed the applicant with an accentuated personality with dissocial and narcissistic elements and had found that he had previously abused alcohol, without having been addicted to alcohol, but had not been drinking since his imprisonment. He had concluded that the applicant’s free will in relation to behaviour constituting a risk for public security and order was not restricted as a result of his condition. Despite the fact that there was a risk that the applicant would commit further serious offences, the conditions for his placement in a psychiatric hospital under Article 1 § 1 of the Bavarian (Mentally Ill Persons’) Placement Act were therefore not met.
23.  On 4 November 2010 the Regensburg Regional Court dismissed the objection made by the applicant by reference to the Court’s judgment in the case of M. v. Germany, no. 19359/04, to the lawfulness of the execution of his preventive detention. On 6 December 2010 the Nuremberg Court of Appeal dismissed the applicant’s appeal.
24.  On 7 December 2010 the applicant lodged a request under Article 67e of the Criminal Code (see paragraph 36 below) with the Regensburg Regional Court, requesting his release.
25.  On 25 November 2011 the Regensburg Regional Court declared the applicant’s preventive detention ordered by the Coburg Regional Court on 8 October 2008 terminated and ordered the supervision of his conduct. It had regard to the report dated 28 May 2011 of psychiatric expert L. it had consulted. The latter had found that the applicant suffered from a dissocial personality disorder and had displayed a problematic consumption of alcohol, but there was no proof for an abuse of alcohol entailing physical or mental damage. There was a high risk (of more than 50 per cent) that the applicant would commit serious sexual offences if released. In the expert’s view, his dissocial personality disorder amounted to a mental disorder within the meaning of section 1 of the Therapy Detention Act and contributed considerably to the applicant’s dangerousness. The expert had proposed that the applicant should receive an individual therapy to prepare him for further therapeutic measures, preferably in a psychiatric hospital.
26.  The Regensburg Regional Court, having regard to that report as well as to those drawn up in the proceedings under the Therapy Detention Act (see paragraph 29 below), found that the applicant suffered from a mental disorder within the meaning of section 1 § 1 of the Therapy Detention Act, but that it was not highly likely that he would commit the most serious crimes of violence or sexual offences as required by the Federal Constitutional Court in its judgment dated 4 May 2011 (see paragraph 46 below).
27.  On 29 December 2011 the Nuremberg Court of Appeal quashed the Regional Court’s decision and ordered the continued execution of the applicant’s preventive detention. It considered that the applicant did not only suffer from a mental disorder within the meaning of section 1 § 1 of the Therapy Detention Act, but that it was also highly likely that he would commit the most serious crimes of violence or sexual offences if released.
28.  On 3 January 2011 the Straubing Prison authorities lodged a request with the Regensburg Regional Court to order the applicant’s detention under the Therapy Detention Act (see paragraph 39 below).
29.  Contrary to expert L. (see paragraph 25 above), psychiatric experts P. and La. consulted in these proceedings concluded that the applicant did not suffer from a “mental disorder” for the purposes of the Therapy Detention Act. There was a risk that he would reoffend if released, but he did not suffer from a dissocial personality disorder of a psycho-pathological nature. The proceedings are apparently still pending.